MALIS v. LIEBERMAN ET AL. (07/02/70)

decided: July 2, 1970.

MALISv.LIEBERMAN ET AL., APPELLANTS

Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1960, No. 761, in case of David B. Malis and Richard B. Malis, executors under last will and testament of Max E. Cohen, deceased, v. J. P. Lieberman and 2401 Pennsylvania Avenue Corporation.

Appellants filed preliminary objections to appellees' complaint in Equity, which were dismissed by the lower Court.

This appeal has been taken under the Act of March 5, 1925, P. L. 23, 12 P.S. § 672, challenging the lower Court's jurisdiction of the subject matter. The appeal must be quashed as having been taken too late.

The docket entries in the instant case show that the lower Court's Order dismissing appellants' preliminary objections was rendered and docketed January 8, 1970, and that certiorari from the Supreme Court was docketed January 30, 1970. In Burdett Oxygen Co. v. I. R. Wolfe & Sons, Inc., 433 Pa. 291, 249 A.2d 299, this Court said (page 293): "Although as appellant points out, different considerations might apply to a decision announced in open Court in the presence of the parties, where as here, the decision is announced by written order, the date upon which the order is docketed should be the starting date for the fifteen day period established in § 3 [of the Act of March 5, 1925]." See Colonial Pipeline Co. v. Peery, 434 Pa., supra; Reynolds Metals Co. v. Berger, 423 Pa., supra.*fn** Since the time for taking appeals is computed by excluding the first day and including the last day of the prescribed period, January 23, 1970 was the last day in which this appeal could have been filed and perfected. We note that when the last day falls on a Saturday or a Sunday or any legal holiday, such day is omitted from the computation. Act of June 20, 1883, P. L. 136, Section 1, as amended by the Act of August 11, 1959, P. L. 692, Section 1, 76 P.S. § 172.

The perfection of an appeal requires, inter alia, that a writ of certiorari be issued by the Prothonotary of the Appellate Court, directed to the inferior Court, and

[ 439 Pa. Page 605]

that said writ be filed in the lower Court by the appellant. Fenerty Disbarrment Case, 356 Pa. 614, 52 ...

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